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Data Protection Laws of the World - Israel chapter (2016)

Page 1 ISRAEL Yoheved Novogroder-Shoshan* Yigal Arnon & Co, Jerusalem, Israel CONTENTS 1 Introduction 2 Scope of law and definitions 3 Obligations of data controller 4 Obligations of processing bureaux 5 Obligations relating to disclosure and transfer of data 6 Rights of data subjects 7 The regulatory body 8 Offences and enforcement 9 International aspects and the future Annex List of primary and secondary legislation * The author is grateful to Arye Schreiber for his extremely valuable assistance in authoring the initial version of this chapter. 1 INTRODUCTION 1.1 Title of legislation and amendments Data protection in the State of Israel is governed primarily by the Protection of Privacy Law 1981 (“the Privacy Law”), and in particular by Chapter Two of that law, which is entitled “Protection of Privacy in Databases”. Chapter Two of the Privacy Law was changed significantly by a 1996 amendment (“the 1996 amendment”) which, among other things, addressed procedures for registering databases, authorised the Registrar of Databases to refuse registration in certain circumstances, established the role of the database manager, excluded certain data stored on personal computers from registration requirements and added a new subchapter dealing with direct mail solicitations. Other amendments and certain orders are listed in the Annex to this chapter. 1.2 Date in force Chapter Two of the Privacy Law came into force on September 12, 1981. The 1996 amendment came into force in most respects on October 12, 1996. The dates that other amendments and secondary legislation came into force are set out in the Annex to this chapter. 1.3 Broad scope of legislation The underlying purpose of the Privacy Law is to protect the privacy of individuals by regulating the storage and dissemination of information relating to such individuals. Page 2 1.4 Brief summary of the main provisions of privacy law (1) Limiting the publication or use of data concerning a person’s private affairs. (2) Requiring the registration of databases with the Registrar of Databases, and setting out the prerequisites for such registration. (3) Setting out regulations regarding the operation and management of databases and disclosure and use of database information, including the requirement to respect certain rights of the data subjects. (4) Establishing the Registry of Databases (“the Registry”) and the rights and duties of the Registrar of Databases (“the Registrar”). 1.5 Brief history The concept of data protection is rooted in the general right to privacy. The right to privacy has been recognised by the Supreme Court in Israel as a fundamental right and since 1992 has been anchored in the quasi-constitutional Basic Law: Human Dignity and Liberty (“the Basic Law”). The Basic Law provides that “every person is entitled to privacy and to the confidentiality of his life” and “there shall be no infringement of the confidentiality of a person’s conversations, correspondence and writings” (s.7 of the Basic Law). Prior to the enactment of the Basic Law, the Parliament enacted the Privacy Law. The Privacy Law prohibits an infringement of the privacy of any person without that person’s consent and provides for both civil and criminal liability for an infringement of privacy (ss.1 to 5). In this context, “person” is defined as natural persons only, and does not include legal entities. The Privacy Law, as originally enacted, included provisions on data protection, and established the position of Registrar of Databases, but it is widely acknowledged that, even at the time of its enactment, the Privacy Law provisions concerning databases were technologically outmoded. During the years following the enactment of the Privacy Law, it became clear that the protection offered by the Privacy Law was insufficient, that there were significant leaks of information from databases and that private information was held in databases that were easily accessible by persons without a legitimate right to access such data. The Privacy Protection Council, which advises the Ministry of Justice, prepared an amendment to the Privacy Law in 1993 in order to increase the protection of privacy of data. That effort gave rise to the 1996 amendment and other amendments discussed elsewhere in this chapter. 2 SCOPE OF LAW AND DEFINITIONS 2.1 Scope of data regulated 2.1.1 General right to privacy Section 2 of the Privacy Law identifies the following activities which constitute an infringement of privacy if carried out without consent: (1) Spying on or trailing a person in a manner likely to harass him, or any other harassment (s.2(1)); (2) eavesdropping prohibited under any law (s.2(2)); (3) photographing a person while he is in a private domain (s.2(3)); (4) publishing a person’s photograph under circumstances in which the publication is likely to humiliate him or to bring him into contempt (s.2(4)); (5) publishing a photograph of a person who has been physically or psychologically injured in a manner such that it is possible to identify such person, where the photograph was taken at the time of the injury or shortly thereafter and under circumstances in which the publication is likely to cause embarrassment, excluding publication of photographs immediately following the photographing thereof without unreasonable delay under the circumstances (s.2(4A)); Page 3 (6) copying a letter or electronic message not intended for publication or use of its contents without the permission of the sender or the recipient, provided that the letter or electronic message does not have historic value and fifteen years have not passed from the date it was written (s.2(5)); (7) using a person’s name, appellation, picture or voice for profit (s.2(6)) (8) infringing an obligation of secrecy laid down by law in respect of a person’s private affairs (s.2(7)); (9) infringing an obligation of secrecy laid down by explicit or implicit agreement in respect of a person’s private affairs (s.2(8)); (10) using, or passing on to another, information regarding a person’s private affairs, other than for the purpose for which it was given (s.2(9)); (11) publishing or passing on anything that was obtained by way of an infringement of privacy under paras (1) through (8) or (10) above (s.2(10)); (12) publishing any matter that relates to a person’s intimate life, state of health or conduct in “the private domain” (s.2(11)); and (14) publication of photographs of a person’s identifiable corpse unless one of the following criteria are met: (i) 15 years have passed from the time of death; (ii) consent was obtained from the deceased or his relatives identified in the Privacy Law under the conditions specified in the Privacy Law; or (iii) a court order is obtained under conditions set forth in the Privacy Law (s.2(A)). Therefore, in broad terms, any kind of information without regard to how it is maintained or to its content is governed by the Privacy Law to the extent that the use of the information constitutes an infringement of a person’s privacy. It is important to note that there are numerous other laws imposing obligations of secrecy which, if breached, could constitute an infringement of privacy under s.2(7) and (8), such as the Banking Ordinance 1941, the Patients’ Rights Law 1996 and the Income Tax Ordinance (new version). 2.1.2 Protection of privacy in databases Chapter Two of the Privacy Law regulates the protection of privacy in databases. “Data” is defined in s.7 as details regarding a person’s personality, personal status, private affairs, state of health, economic situation, professional qualifications, opinions and faith. The Supreme Court has indicated a willingness to interpret the term “data” broadly. In considering whether a bank had a right of access to information about pledges in a governmental database that was maintained by reference to vehicle registration numbers, the Supreme Court held that the term “data” must be interpreted in accordance with the legislative purpose of the Privacy Law. Even though the data was not classified by the personal names of the individuals, but rather by vehicle number, and therefore arguably did not constitute information about a person, the court held that since it was possible to derive information about “the economic situation” of a person from the information (and the economic situation of a person was a category of information which was deemed “data” and protected by the Privacy Law), the information was deemed to be “data”. See State of Israel v Bank Hapoalim Ltd (1989) 44 (ii) PD 726. The 1996 amendment added the term “sensitive data”, defined as details regarding a person’s personality, private affairs, state of health, economic situation, opinions and faith, and other information deemed to be sensitive data by order of the Minister of Justice with approval by the Constitution, Law and Justice Committee of the Knesset (see 3.4 below). In addition, the regulations created a third category of data called “restricted data”, which includes data about a person’s health and data related to the security, defence and foreign affairs of the State of Israel. Special procedures apply with respect to the management of databases containing restricted data and the use of such information; see the Protection of Privacy Regulations (Conditions for Possessing and Protecting Data and Procedures for Transferring Data between Public Bodies) 1987, regs 1 and 8–15 (“the Data Possession Regulations”), and 3.11 below. A “database” is defined in s.7 of the Privacy Law as “a collection of data, stored by magnetic or optical means and intended for computer processing”, excluding the following two specific kinds of databases: (1) any collection of data for personal use that is not used for business purposes (s.7). Prior to the 1996 amendment, the definition of “database” included, broadly speaking, information held by any person on a Page 4 home computer. Such a person was required to register the computer with the Registrar and could have been subjected to sanctions if he failed to do so, even if the computer was used solely for personal and family uses. The explanatory notes to the proposed law state that this requirement was one that the public simply could not meet. See Explanatory Notes to Proposed Law, Reshumot, Hatza’at Hok 2234 (1994) at p.148. Therefore, the 1996 amendment provided that databases held solely for personal use were excluded from the definition of “database”; and (2) a collection of data that contains only names, addresses and means of communicating with the data subject (e.g. telephone and fax numbers) which in itself does not create any characterisation that infringes the privacy of the people whose names are included in it, so long as neither the owner of the collection nor any body corporate under the owner’s control has an additional collection of data (s.7, Privacy Law). The purpose of this exclusion was to ensure that any collection for business purposes used solely to maintain contact with customers would not require registration. See Reshumot, Hatza’at Hok 2234 (1994) at p.148. 2.2 Scope of regulated processing activities Although the definition of “database” requires that the data be “kept by magnetic or optical means and intended for computer processing”, the Privacy Law does not define the term “computer processing”. It does, however, set out in general terms the types of activities which, if performed with respect to data, would constitute a breach of the Privacy Law, these include: (1) using or passing on to a third party data otherwise than for the purpose for which they were given (s.2(9)); (2) publishing or passing on anything that was obtained by way of an infringement of privacy (s.2(10)); and (3) publishing any matter that relates to a person’s intimate life, state of health or conduct in the private domain (s.2(11)). 2.3 Scope of protected data subjects Although the definition of “person” for the purposes of determining what constitutes an “infringement of privacy” indicates that only an individual’s privacy is protected by the Privacy Law (s.3), case law indicates that notwithstanding the definition in the law, corporations may, to some extent, be entitled to protectable privacy rights under the Privacy Law (Civ Petition 1614/02, in Civ File 2324/01 Multilock Ltd v Rav Bariach Hashkaot Ltd Tak-Mehozi 2002 (1) 851) and under the Basic Law (Civ File 10434/96 Keisarit v Ararat TakMehozi 2000 (3) 26643). Therefore, although the law in this respect is not settled, it appears that the privacy rights of legal persons, although generally thought not to exist, may be afforded some protection in Israeli law (Eli Halm Privacy Law (Perlstein, Israel 2003) pp.157 onwards). Also, the definitions of “data” and “database” (see 2.1 above) indicate that the provisions of the Privacy Law that specifically regulate databases (Chs Two and Four) apply only to databases containing information about natural persons. Finally, the rights to inspect information in a database and request its amendment or deletion are only granted to individuals (ss.13 and 14). The Privacy Law does not require that the individual be a resident or citizen of Israel. 2.4 Scope of controllers regulated The Privacy Law and the regulations promulgated thereunder impose specific obligations on database owners, database holders and database managers; these obligations are discussed more fully below. In addition, all persons or legal entities are prohibited from using data in a database that is required to be registered, other than for the purposes for which the database was created (s.8(b)). “Use”, defined as including “disclosure, transfer and delivery” (s.3), is likely to include processing as well. The Privacy Law does not define “database owner”. A “database manager” is defined as the active manager of the body which owns or possesses a database, or a person authorised to carry on such activities by the Page 5 manager for this purpose (s.7). A “database holder” is defined as one who has a database in his possession on a permanent basis and is permitted to use it (s.3). The obligation to register a database is imposed on the database owner (s.8(c)). However, the Privacy law also prohibits the management or holding of a database that is required to be registered if it is not registered (unless the Registrar failed to notify the applicant within 90 days that the registration was denied or delayed, or the requirement to register derives from an order of the Registrar which was permitted to operate prior to registration) (s.8(a)). There are other provisions that apply specifically to managers and holders of databases (ss.16 and 17), employees (s.16), entities that possess databases of different owners (s.17A(a)), entities that possess five or more databases that require registration (s.17A(b)), public bodies holding databases (s.17A(a)), and banks, insurance companies and companies engaged in ranking or evaluating credit ratings (s.17B). 2.5 Application to processing bureaux There are requirements applicable to “external service providers” in the provisions governing data security (see 3.11 below) and one provision relating to a “service bureau” in the regulations governing inspection of data by data subjects (see 6.1 below). The original version of the 1996 amendment that was prepared by the Privacy Protection Council contained a number of special provisions concerning service bureaux, but these provisions were not included in the amendment as adopted. See Reshumot, Hatza’at Hok 2234 (1994) at p.148. The intention of the provisions was to regulate the growing number of data processing service providers which have the potential to gather considerable amounts of data. Although the provisions relating to the specific category of “service bureaux” were not adopted, other provisions which were adopted essentially achieve the same goal by regulating holders of databases owned by other parties, and holders of five or more databases requiring registration (see 3.9 below and ss.17A(b) and 17B). 2.6 Application to manual records The definition of “database” requires that the data be “kept by magnetic or optical means and intended for computerised processing” (s.7). Therefore, the database regulation provisions of the Privacy Law do not apply to manual records. However, s.2 of the Privacy Law, which defines specific activities that constitute an invasion of privacy, apply to all data, regardless of the form in which it is maintained, and these provisions apply to manual records as well as electronic records. Thus, the Privacy Law regulates both invasions of privacy generally and creation and use of databases specifically, while the Privacy Law’s database provisions apply only to data in computerised form, the law’s provisions applicable to privacy rights generally apply to all information regardless of the form in which it is maintained. Chapter Four of the Privacy Law specifically governs the delivery and receipt of data and information to and from public bodies. Section 23A provides that all of Ch. Four applies to any information that relates to a person’s “private affairs”, even if it does not fall within the definition of “data” (s.23A and Explanatory Notes to Proposed Law, Reshumot, Hatza’at Hok 1628 (1983) at p.176). In this context, there is no requirement that the data be “kept by magnetic or optical means and intended for computer processing”. 2.7.1 Definition of a public body A “public body” is defined as: 2.7.1.1 government departments and other state institutions, local authorities, and any other body performing lawful public functions; and Page 6 2.7.1.2 a body designated by an order of the Minister of Justice, with approval of the Knesset’s Constitution, Law and Judiciary Committee, so long as the order specifies the categories of information and items the body is entitled to deliver and receive (s.23). A number of organisations and institutions have been designated public bodies by order for the purpose of collecting specific kinds of data. For example: (i) hospitals and health funds (kupot holim) may collect information regarding the health of a person for treatment purposes; (ii) higher educational institutions may collect information containing personal details for research purposes; and (iii) an organisation that provides assistance to disabled army veterans may collect certain information about disabled veterans. See the Protection of Privacy Order (Determination of Public Bodies) 1986. 2.7.2 Prohibition on delivering data In general terms, a public body is prohibited from delivering data unless: 2.7.2.1 the data has been lawfully published; 2.7.2.2 the data has been lawfully made available for public inspection; or 2.7.2.3 the data subject consents to the delivery of the data (s.23B(a)). 2.7.3 However, the Privacy Law provides exceptions to this general prohibition on disclosure in favour of security authorities (e.g. the police) (s.23B(b)) and, subject to compliance with a number of additional obligations, public bodies that deliver information to other public bodies as part of their lawful jurisdiction or tasks (ss.23C and 23D). The Freedom of Information Law 1998 (“the Freedom of Information Law”), which was enforced in May 1999, establishes the right of Israeli citizens or residents to obtain access to public “information”, defined in s.2 as any information found within the public sector which is written, recorded, filmed, photographed or computerised. Pursuant to s.7 of the Freedom of Information Law, if a request is submitted to a government authority, the government authority must provide the requested information within 30 days (which may be extended by additional 30 days) or give written reasons for denying the request. Certain provisions of the Freedom of Information Law are designed to protect privacy. For example, s.9 provides that a government authority is forbidden to disclose certain information to the public unless permitted pursuant to any law, this includes information that if disclosed would constitute an infringement of privacy under the Privacy Law. Section 13 provides that before disclosing information about a third party which could harm their interests, the government authority must notify the third party about the request for disclosure, and allow 21 days for such person to respond. If the person opposes disclosure but the government authority decides that the information should nonetheless be disclosed, then the government authority must provide a reasoned opinion and an opportunity for such person to appeal the decision before disclosure. Page 7 The Freedom of Information Law does not take precedence over other binding legislation which requires, allows or restricts the disclosure or transfer of information from a public body, i.e. the Privacy Law (Freedom of Information Law s.20). 2.8 General exemptions As discussed at 2.1 above, databases held solely for personal use or containing exclusively the names, addresses and contact numbers of customers or other business contacts (provided the business does not maintain any other registrable databases) are exempt from the provisions of the Privacy Law because they are excluded from the definition of “database” (s.7). An exemption provides that no person shall be responsible under the Privacy Law for an act which he or she is empowered to do by law (s.19(a)). This provision broadly encompasses any disclosure of data that a person is authorised to make under any statute, ordinance or regulation. Another exemption provides that no security authority, including the Protection of Witnesses Authority, or person employed by or acting on behalf of a security authority, shall be responsible under the Privacy Law for an infringement reasonably committed within the scope of its functions (s.19(b)). Additional defences apply in respect of the invasion of privacy, these defences do not however apply to a breach of the database provisions of the Privacy Law. In particular, pursuant to s.18 of the Privacy Law, it is a good defence in criminal or civil proceedings for infringement of privacy, if the infringement was committed in good faith: 2.8.1 by someone who neither knew, nor should have known, of the possibility of an infringement of privacy; 2.8.2 in circumstances in which the infringer was under a legal, moral, social or professional obligation to commit the infringement; 2.8.3 in defence of a legitimate personal interest of the infringer; 2.8.4 during the lawful performance of the infringer's occupation and during the ordinary performance of his work, provided the infringement was not publicized; 2.8.5 by means of a photograph, or publication of a photograph, which was taken in the public sphere and the injured party’s image was incidental to the photograph; or 2.8.6 in circumstances permitted under the Defamation Prohibition Law 1965. Another defence exists for an infringement of privacy that is justified, in the circumstances, as being in the public interest (s.18(3)). In Registrar of Databases v Moshe Ventura (1988) 48 (iii) PD 808, the Supreme Court held that the public interest in obtaining information about cheques, bills of exchange and other financial obligations that had not been honoured was not sufficient to justify the invasions of privacy and potential harm likely to be caused to the individuals, and upheld the Registrar’s refusal to register a database intended for the collection and disclosure of data about dishonoured cheques. However, subsequent to the issuance of the verdict, a limited version of the database in question was indeed registered, and certain restrictions were imposed regarding inspection rights of the data subjects with respect to such database. Page 8 2.9 Application to journalistic activities Journalistic activities are not exempt and are subject to all the provisions of the Privacy Law. 2.10 Other relevant definitions The term “publishing”, used in s.2(10) and (11), is broadly defined to include any means of communication, whether oral, written or printed “and all other means” (s.3 of the Privacy Law, adopts the definition of “publishing” from s.2 of the Defamation Prohibition Law 1965). Furthermore, included within the definition of “publishing” is a provision stating that publishing includes material that is “intended for a person (other than the injured person) and which is received by that person or by any person other than the injured person” and “written and the writing is likely, in the circumstances, to be received by any person other than the injured person” (s.2 of the Defamation Prohibition Law 1965). 3 OBLIGATIONS OF DATA CONTROLLER 3.1 Registration and notification requirements and procedures Section 8(c) of the Privacy Law requires the owner of a database to register the database if any of the following conditions is met: 3.1.1 the database contains data about more than 10,000 people (see definition of “data” at 2.1 above); 3.1.2 the database contains sensitive data (see definition of “sensitive data” at 3.4 below); 3.1.3 the database contains data about natural persons not provided by them, on their behalf or with their consent; 3.1.4 the database belongs to a public body (see definition of “public body” at 2.7 above); or 3.1.5 the database is used for direct mail services (see definition of “direct mail services ” at 3.10 below). Further to a 2007 amendment, “consent” means informed consent, and consent may be express or implied. While Israeli courts have not yet defined what constitutes informed consent for the purposes of the Privacy Law, in other contexts courts have interpreted “informed consent” as consent granted after provision of information to an individual, which would be understood by a reasonable person, that is reasonably necessary for purposes of providing consent. Even where one of the conditions above are met, the database registration requirements do not apply where the database only contains information made public by lawful authority, or which was made available for public inspection by lawful authority (s.8(d)). This exemption recognises that under Israeli law, certain databases must be open to public inspection, such as the database containing information about companies pursuant to the Companies Law 1999. The Registrar has the power to order that databases that are exempt from the obligation to register by virtue of s.8(c) and (d) must nonetheless be registered (s.8(e)). Page 9 Applications to register a database must be submitted to the Registrar (s.9). The application must specify the following: (1) the identity and address in Israel of the owner of the database, the person with possession of the database and the manager of the database; (2) the purpose for setting up the database and the purposes for which the information is intended; (3) the types of data to be included in the database; (4) details regarding transfers of data outside the borders of the state; and (5) details regarding any regular receipt of data from a public body, the name of the public body providing the data and the nature of the data, with the exception of details delivered by the public body with the consent of the data subjects. In addition, the general manager of any entity which owns a database must notify the Registrar in writing of the name of the database manager for inclusion in the Registry (see reg.2 of the Data Possession Regulations). At the time of writing, pursuant to the Privacy Regulations (Fees) 2000, as amended for 2016, the initial fee for database registration is NIS263. An additional annual fee is imposed on registered databases for subsequent calendar years, with the exception of databases owned by the State of Israel. The amount of the fee is determined on the basis of the owner of the database. The annual fee for a database owned by a corporation, other than a non-profit organisation, is NIS 545 The annual fee for registered databases owned by a non-profit organisation is NIS168. Special discounts are granted to owners of multiple databases. The owner or holder of a database must notify the Registrar if there is a change in the details provided in the application, or if operation of the database is discontinued (s.9(d) of the Privacy Law). Following submission of the application for registration of a database, the Registrar must register it in the register within 90 days, unless the Registrar has reasonable grounds to assume that: (1) the database is used or is liable to be used for illegal activities or as a cover for illegal activities; or (2) the data included in the database was obtained, accrued or collected in violation of the Privacy Law or in violation of the provisions of any other legislative enactment (s.10(a)(1) of the Privacy Law). If the Registrar deems it appropriate with respect to the actual operations of the database, the Registrar is authorised to register a purpose different from that specified in the application, to register a number of purposes for a database, or to order that several applications be submitted instead of the single application that was submitted (s.10(a)(2)). If the Registrar does not register the database within 90 days and does not inform the applicant registration has been refused or delayed, then the applicant is permitted to operate the database even if it is not registered (s.10(b1)). However, if the Registrar does inform the applicant of a refusal or delay in registration, then the applicant may not manage or possess the database, unless a court decides otherwise (s.10(b2)). All of the details required to be included in the application for registration pursuant to s.9 must be included in the Registry. The Registry is open for public inspection (with the exception of certain governmental databases such as the police and those maintained by the military and tax authorities) (ss.12 and 13). 3.2 Conditions to be met for holding and processing of data Possessing or managing a database that must be registered is prohibited unless: 3.2.1 the database has been registered (s.8(a)); Page 10 3.2.2 the application to register the database has been submitted and the Registrar has not registered it within 90 days and has not notified the applicant of a refusal to register or a delay for special reasons (s.10(b1)); or 3.2.3 the Registrar has issued an order stating that the database must be registered (in respect of a database that would not normally be subject to the registration obligation) and the Registrar’s order grants permission to manage and possess the database during the registration procedure (s.8(e)). 3.3 General principles relating to processing of data Third party processing of data is specifically addressed in the context of data security requirements (see discussion at 3.11 below). There is a requirement to set up administrative procedures applicable to an external service provider that provides data processing services, as well as a requirement to destroy any intermediary print-outs from data processing involving “restricted data” (see 3.4 below). In addition, in December 2011, the Registrar published Directive 2-2011, “Use of Outsourcing for Personal Data Processing” (the “Outsourcing Directive”). The Outsourcing Directive came into effect on May 2012, and while it does not have the status of law, it reflects ILITA’s interpretation of obligations under existing law and therefore must be considered. Highlights of the Directive include the following: (1) An entity contemplating outsourcing must perform an internal assessment of the permissibility and suitability of outsourcing, considering the legal and ethical obligations to which the entity is subject, the nature of the information to be transferred and its sensitivity. (2) Service providers should preferably be given access to databases maintained and controlled by the database owner rather than receiving copies of databases. (3) The entity outsourcing processing must execute an intercompany agreement with the processor which expressly designates the scope, purpose and term of permitted access to and use of information, expressly prohibits the processor’s transfer of data or use other than for the permitted purpose, ensures the service provider’s compliance with applicable laws (including data subject notification, access and correction rights), expressly prohibits improper collection of personal data or use of illegal sources of personal data, and requires that databases from different sources will be maintained separately and that data will be deleted following termination of the service period unless retention of a copy is required by law or for the purposes of defence against legal claims. (4) The entity outsourcing processing must perform a risk assessment that considers the nature of the specific data being processed, implement appropriate data security measures and impose a binding data security policy on the processor. It is recommended that a data security officer be appointed at both the client’s and service provider’s facilities; the entity outsourcing processing must perform periodic service provider audits (and, when appropriate, surprise audits) to ensure compliance, and implement procedures for the service provider’s transmission of breach notifications. 3.4 Specific provisions relating to sensitive data “Sensitive data” is defined as details regarding a person’s personality, private affairs, state of health, economic situation, opinions and faith, and other information deemed to be sensitive data by order of the Minister of Justice with approval of the Constitution, Law and Justice Committee of the Parliament (s.7). A comparison between the definitions of “data” and “sensitive data” reveals the following differences: “sensitive data” does not include data regarding a person’s personal status and professional qualifications; and the concept of “sensitive data” can be expanded by an order not requiring a statutory amendment. To date, there have not been any orders expanding the definition of “sensitive data”. Any database that contains “sensitive data” must be registered in the Register of Databases by means of an application to the Registrar submitted by the database owner (ss.8(c)(2) and 9). Page 11 Following the recommendations of the Schoffman Report (see 9.3.6 below), under the draft Protection of Privacy Law (Reduction of Registration Requirements and Establishment of Obligation to Maintain Management Procedures, Work Processes and Documentation) 2012 (see 9.3.3 below), this category would be deleted from the Privacy Law. In addition to the term “sensitive data” in the Privacy Law, the regulations create another category of information called “restricted data”, which is defined to include data about a person’s condition of health (see reg.1 of the Data Possession Regulations). In order to ensure that the security of “restricted data” is maintained, Chapter Four of the Data Possession Regulations sets out a number of requirements for the management of any database that contains “restricted data” (see 3.11 below). 3.5 Specific provisions relating to medical data There are a few provisions that relate specifically to medical data, all of the provisions regarding databases also apply to databases containing medical data because information regarding a person’s condition of health falls within the definitions of both “data” and “sensitive data” (s.7). Thus, any database that contains information about a person’s health condition must be registered (s.8(c)(2)). In addition, medical information is among the subjects deemed to be “private affairs” for the purposes of s.2(7) and 2(8). The effect of this is that infringement of the obligation of secrecy could constitute an infringement of privacy subjecting the infringer to civil penalties, and to criminal penalties more stringent than those relating to infringement of database-related requirements (ss.2, 4 and 5 of the Privacy Law). Furthermore, the regulations governing “restricted data”, which requires additional security measures to be taken, are applicable to databases containing data about a person’s condition of health (see 3.4 above and 3.11 below). Finally, a database owner is not required to allow a person to inspect information that relates to his or her physical or mental health if the database owner believes that the information could cause severe harm to the person’s health or endanger his or her life. The information must, however, be given to the person’s physician or psychologist (s.13(c)). The Genetic Information Law 2000 specifically requires the holder of a database of identified genetic information to register it in accordance with the Privacy Law. Identified genetic information is defined as information derived from genetic tests, and accompanied by an identifying detail, defined as a person’s name, identification number, or any other identifying number issued by a governmental authority. It should also be noted that a number of other laws and directives impose on care-providers, employees and medical institutions an obligation of secrecy regarding patient information. For examples, see the Patients’ Rights Law 1996, the Treatment of the Mentally Ill Law 1991 and the Psychologists’ Law 1977. 3.6 Specific provisions relating to credit data The collection and dissemination of credit data has been regulated in the Credit Details Service Law 2002 (“the Credit Law”). The law applies both to credit data services, and business information services. The Credit Law requires anyone engaged in providing these services to obtain a licence as a credit reference agency and to register its database in accordance with the Privacy Law. Under the Credit Law, the Minister of Justice has appointed a registrar for both credit data services and business information services. The registrar’s duties include the issuance of licences to database owners and managers, the compilation of a register of licensed holders, and the supervision of licence holders. With regard to credit data, the Credit Law distinguishes between data regarding the subject’s non-payment of debts, and “positive data,” defined as data regarding credit that was issued to a consumer. A credit report must include both types of data, but while information regarding non-payment of debts may be obtained from a number of sources as specified in the law (s.16 the Credit Law), “positive data” may only be obtained from a banking corporation, unless the subject has consented to the collection and provision of such data in a written notice to the registrar or the licence holder (s.17 the Credit Law). The registrar must keep a list of Page 12 subjects who have consented in this manner, and upon request in writing from the subject, must delete the subject from the list. A partial credit report, containing data from only some of the sources listed in the law, may also be issued, provided that the report clearly states that the information is partial, in a manner to be determined by the Minister of Justice (s.21 the Credit Law). The law contains a number of provisions on the manner in which the data may be collected and disseminated. For example, data may only be held for seven years, after which it must be destroyed (s.20 the Credit Law). A credit report may only include the information detailed in the law, and may only be used for limited purposes. In order to receive a credit report a person must provide a written statement explaining the purpose for which the information will be used (s.28 the Credit Law). The subject of the data is entitled to receive, free of charge and within seven days of request, a credit report relating to himself, inspect the data that pertains to him or her, and may contact the license holder if he or she believes that the data is not true, complete, clear, or current (ss.25, 31 the Credit Law). Violations of the law are subject to fines and, under certain circumstances, imprisonment. In addition, the protections of the Privacy Law apply generally to the collection and disclosure of any information relating to an individual’s financial position and credit history. Specific mention of credit data is contained in s.17B(a)(3) of the Privacy Law, which requires that companies engaged in ranking or evaluating credit ratings must appoint a suitably trained person to be in charge of data security (see the discussion on data security at 3.11 below). Under s.38(c) of the Credit Law, a transferor of information to a licensed owner of a credit database in accordance with the law is not liable under the Privacy Law. 3.7 Specific provisions relating to other specific types of data Security Defence The Privacy Law contains several provisions regarding data relating to the security authorities, defence and foreign relations of the state (for example, see ss.12, 13(e) and 19(b) of the Privacy Law, as well as regs 8 to 15 of the Data Possession Regulations). Although details of these are beyond the scope of this chapter as they relate to the public sector, brief summaries have been provided at 3.11.3 and 6.1.3 below. Employee Monitoring In 2011, Israel’s highest labour court issued a decision which established for the first time comprehensive rules regarding employers’ monitoring of employees’ computer, information technology and email use at the their workplace. See Labor Appeal No.90/08 Tali Isakov Inbar v The State of Israel, the Commissioner for Women Labor Law (February 8, 2011). Pursuant to the decision, monitoring personal email correspondence requires a court order or employee consent in each instance; thus, in the wake of this decision, on a practical level it is difficult for employers to monitor employee communications unless the company IT policy prohibits employees’ use of email for non-business purposes. Pursuant to the labour court ruling the following are prerequisites to monitoring employees’ computer, information technology and email use: (1) Legitimate purpose. Monitoring must be in the interest of a legitimate business purpose. Data collected by virtue of monitoring activities may not be used in a manner different from the pre-defined legitimate purpose. The employer must examine alternative surveillance technologies which involve the lowest degree of violation of employee privacy. (2) IT policy. The employer must implement a policy regarding computer usage at the workplace and surveillance activities. This policy must be incorporated in the employment agreement. (3) Detailed notice. The IT policy must provide specific and detailed notice regarding monitoring activities to be undertaken which includes: express notice that email communications will be monitored and for what purpose; description of monitoring and surveillance measures and technologies which will be used (identifying specific programs); identification of frequency of monitoring activities and which Page 13 communications will be monitored; the manner in which the gathered data will be kept and stored; the duration of such storage; and what use, if any, will be made of the stored data. To the extent the employer intends to employ blocking technologies (for example, blocking transmission of emails containing certain types of data or access to certain websites) the employer must clearly detail the scope of such technologies and their use. (4) Written consent. The employee must consent in writing to the violation of his privacy (certain mandatory language is required to appear in the consent) and this consent must be part of the employment contract. The consent must be explicit, informed and voluntary, after the employee has been notified of the employer’s intention to violate the employee’s privacy interests. (5) Third party notice. Third parties must be notified of surveillance activities (for example, by means of an email footer containing appropriate disclosure). The requirements for implementing certain of these requirements remain somewhat unclear and have not yet been clarified by subsequent court decisions. In two recent cases addressed video monitoring in the workplace. In the first case, the court ruled that installing and operating a security camera in employees’ workspace without their consent and notwithstanding their express objection constitutes a violation of their privacy; in addition, such practice constitutes significant aggravation in their working conditions which entitles the employees to resign without such resignation being deemed breach of contract (Civ File 39840-04-10 Leshziner v Pe'er Medical Rehabilitation Center Ltd. 2011). A second case held that installing security cameras in public areas of the workplace (such as the building entrance) does not constitute a violation of the employees' privacy (Civ File 1116-02-12 Gafner v Prigo Israel Agencies Ltd. 2013). Job Applicant Data In February 2012, the Registrar published Directive 2-2012 “Application of the Protection of the Privacy Law on the Placement Procedures for Job Acceptance and the Activities of Placement Institutes”, applicable to the collection and use of personal data provided by job applicants to companies providing pre-employment evaluation and screening services (“Placement Institutes”) and to the test results generated by such entities. This Directive addresses the following, among other matters: (1) For purposes of the Privacy Law, the Placement Institute acts as a “holder” of applicants’ personal data, while the potential employer is the “owner” of such data, unless the Placement Institute obtains the data subject’s express consent to retain such data and transmit it to other employers, with each such transmission requiring an additional specific consent. In the latter case, the Placement Institute would also be considered an “owner” of the data. (2) Use of data by the potential employer other than for purposes of evaluating the applicant’s candidacy for employment requires express consent of the data subject. (3) The Directive acknowledges that under the Privacy Law, “consent” means informed consent; therefore the applicants’ express consent must be obtained for the use of information provided to employers. However, consent alone is not sufficient to support any and all use of applicant data; use of applicant data must also meet the legitimate purpose and proportionality tests; i.e. such data may be used only for a legitimate business purpose, the information must be relevant to the achievement of such legitimate purpose, such purpose must not be achievable by means other than collection of the information, and the benefits derived from retention and processing of personal information must exceed the attendant invasion of the applicant’s privacy. (4) Placement Institutes and prospective employers must allow applicants undergoing evaluations to receive test scores, results and reports transmitted to employers in the form in which they are received by employers (other than data exempt from disclosure pursuant to s.13 of the Privacy Law and test questions or other Placement Institute and employer trade secrets). Such results must be provided for inspection within 30 days, without charge. Applicants must receive notice of the right to receive this information prior to their consenting to the collection of data. Page 14 (5) Any data gathered in excess of the express needs of decision making for acceptance for employment should be destroyed and the Placement Institute may not deliver it to the employer. The Placement Institute and the employer must destroy or fully anonymise applicant data once evaluation activities have been completed. Surveillance Cameras In October 2012, the Database Registrar published Directive 4/2012 titled “Use of Security and Surveillance Cameras and Databases of Recorded Images”. The Directive applies to the use of surveillance cameras in public spaces by government and non-government entities. When surveillance camera footage is recorded, resulting collections of data which include identifying information about individuals or information which enables identification of individuals (such as license plate numbers) are “databases” which are subject to the Privacy Law. Database owners, holders and managers are subject to the applicable Privacy Law requirements with respect to such databases and the collection and use of database information, including, without limitation, use limitations, registration and data security requirements and data subject inspection rights. The Directive requires entities using CCTV systems to do the following: (1) Decision Making Requirements. Prior to implementing surveillance cameras in public spaces, evaluate the need for such technology and its effect on privacy and other rights, and consider less invasive alternatives. Ensure that the technology is implemented to achieve a proper purpose, that its use meets the proportionality test (that the benefit to be achieved exceeds the attendant invasion of privacy.) Exercise special caution when situating cameras in public spaces frequented by minors, such as schools and community centres. (2) Privacy by Design. Consider privacy concerns when designing the placement, coverage and functionality of CCTV systems. Limit coverage to relevant areas, utilise as few cameras as possible, and restrict filming to periods that are relevant to the desired purpose. Utilise image resolution that is appropriate for the desired purpose (for example, avoid a level of resolution that identifies facial features where such information is not needed). Exercise special caution where the following solutions are used: facial recognition or gait recognition software, monitoring activated by specific body language or dress, thermal or infrared solutions that record images in low-light environments, sophisticated tagging solutions having automatic searching capabilities or where CCTV footage is matched with other database information (such as biometric data). Voice recording must comply with the Eavesdropping Law 1979. (3) Notices; Monitoring Policy. Section 11 of the Privacy Law requires provision of proper notice to individuals whose personal information will be included in a database. Consequently, clear, legible signs which meet the Directive’s requirements must be posted both at the entrance to the filmed location and within the filmed area. Signs should preferably include the following: an image of a camera or other suitable image, the name of the responsible entity, the purpose of monitoring (for example, “security”, “crime prevention”, “traffic monitoring”) and an Internet address containing the monitoring policy (see below) or alternatively a telephone number and email address for inquiries. In addition, unless it would substantively harm the desired purpose of filming, post a “monitoring policy” on a designated website which identifies the following: camera location, responsible entity, description of filing capabilities, whether images are recorded, purpose of filming and recording, time period for which images will be retained, hours of filming, entity responsible for viewing and storing recordings, database manager and contact information for exercising data subject inspection rights. (4) Data Retention and Destruction. Evaluate whether live tracking suffices, and record images only where necessary to achieve the desired purpose. Determine appropriate retention periods in light of the purpose to be achieved by recording and the sensitivity of recorded information. (5) Data Subject Inspection Rights. Database owners will not need to enable data subject inspection of surveillance images where the images are not processed to enable data subject identification (for example, using facial recognition software) so long as the images are not retained for more than 30 days. Data inspection requests must be specific and should be evaluated with caution since other data subjects are likely to appear in the recorded images as well. Page 15 See above under “Employee Monitoring” for a discussion of use of CCTV systems in the workplace. Biometric Data The Incorporation of Biometric Identification and Data in Identification Documents and in Databases Regulations 2011 (Biometric Regulations) include provisions which limit the collection and use of biometric identification data from minors. Regulation 9 of the Biometric Regulations prohibits collecting fingerprints for purposes of obtaining biometric identification data from a minor below the age of twelve. Regulation 2 restricts collecting biometric identification data directly from a minor below the age of fourteen, and stipulates that only the minor's legal guardian may provide such data. On January 11, 2015 the Biometric Applications Commissioner of the Prime Minister's Office published a draft "National Integrative Policy for Biometric Application" for review by the general public. The draft Policy tries to create a balance between the advantages of the use of biometric data and the accompanying risks to privacy. The draft Policy determines the need for publishing binding guidelines with respect to the use of biometric applications and provides a first draft of such guidelines. The draft guidelines include provisions with respect to documentation, security, technology, auditing and fulfilment of the requirements of the Privacy Law, including data subject notification obligations and the implementation of privacy by design principles. The draft Policy indicates that ILITA would be the main government body charged with enforcing the rules and guidelines with respect to biometric applications. 3.8 Specific provisions relating to automated decision-making There are no specific provisions relating to automated decision-making. 3.9 Specific provisions relating to pooling, matching, cross-referencing or profiling The potential for infringements of privacy arising from cross-referencing and profiling were concerns underlying the 1996 amendment. The explanatory notes to the proposed law (i.e. the draft 1996 amendment) discuss the importance of protecting privacy in light of the growing sector of the economy that provides automatic data processing services. The explanatory notes comment that the entities providing these services are capable of accumulating many different databases, gathering large quantities of data, and engaging in cross-referencing of the data. Also, entities involved in providing direct mail services would be able to infringe people’s privacy by classifying them into categories based on their personal characteristics, and publicly disseminating these “profiles” without consent. See Reshumot, Hatza’at Hok 2234 (1994) at p.148. The proposed law contained a section regulating direct mail services, which was in large part enacted (see 3.10 below and s.17(c)–(i) of the Privacy Law). See also 1.1 above for a summary of the changes introduced by the 1996 amendment. 3.10 Specific provisions relating to direct marketing Part Two of Ch. Two of the Privacy Law, which entered into force in April 1997, regulates the operation and holding of databases used for direct mail services. In July 2013, the Registrar published draft guidelines regarding the interpretation and implementation of the provisions of the Privacy Law with respect to direct mail and direct mail services. While the draft guidelines do not have the status of binding law, they demonstrate what the Registrar views as appropriate interpretation of the provisions of the Privacy Law. “Direct mail” is defined by the Privacy Law as “an individual approach to persons, based on their belonging to a population group, as determined by one or more characteristics of those persons whose names are included in the database”. An “approach” includes one made in writing or in print, whether made via telephone, facsimile, computer or other means. “Direct mail services” are defined as “the provision of direct mail services to others by way of transferring lists, adhesive labels or data by any means whatsoever” (s.17C). Page 16 The Privacy Law prohibits a person from managing or possessing a database that is used for direct mail services unless it is registered in the register and one of its stated purposes is direct mail services (s.17D). This requirement to state the purpose was intended to facilitate supervision of compliance with the provisions regarding direct mail. See Reshumot, Hatza’at Hok 2234 (1994) at p.148. A person who manages or possesses a database used for direct mail services must keep a record stating the source of all of the data, the date the data was received and the persons to whom the data was given (s.17E). Pursuant to s.17F(a), every direct mail solicitation must state clearly: 3.10.1 that it is a direct mail solicitation; 3.10.2 the registration number of the database; 3.10.3 that the recipient of the solicitation has the right to be deleted from the database and the address to be contacted for this purpose; 3.10.4 the identity and address of the database containing the data from which the solicitation was made; and 3.10.5 the sources from which the owner of the database received that data. The draft guidelines clarify that if the solicitation is transmitted to an active customer of the database owner, it is sufficient to only include item (3.10.3) in the solicitation. Every person has the right to demand that the owner of a database used for direct mail delete from the database any information relating to him (s.17F(b)). However, the draft guidelines clarify that the Registrar will not enforce the right to be deleted from a database used for direct mail where solicitations are transmitted to all of the database owner’s active customers, provided the database owner does not use any sub-categorizations or additional profiling beyond the customer’s status as an active customer. Also, s.17F(c) provides that every person may demand that personal information is not be given to a specific person, to a category of persons, or to any person at all, whether for a specific period of time or indefinitely. The owner of the database must comply with these requests and give written notice of the fact that he has complied (s.17F(d)). If such notice is not given to the person within 30 days after the owner receives the request, then the person may apply to the Magistrates’ Court for an order that the owner of the database comply with the request (s.17F(e)). All of the provisions governing databases used for direct mail apply to other information about a person’s “private affairs” to the same extent that they apply to “data” (s.17G). The term “private affairs” is broader than “data” and is included to ensure that the direct mail provisions apply to all information protected by privacy rights (see 2.1.1 above). A public body performing its tasks under any enactment is not subject to the provisions governing databases used for direct mail services (s.17H). In December 2008 Israel enacted Amendment No. 40 to the Israeli Communications Law (Bezeq and Broadcasting) (“Communications Amendment”). The Communications Amendment prohibits the distribution of “promotional messages” (defined below) by email, fax, automated calling system or electronic messages (SMS) without obtaining the recipient’s prior express consent, and its provisions are in addition to the Privacy Law provisions applicable to direct mail activities. The Communications Amendment defines Page 17 “promotional messages” as any commercial message which encourages the purchase of a product, service or other expenditure. The Communications Amendment applies equally to entities themselves offering the goods or services, and entities distributing electronic advertisements on their behalf. Consent may be obtained in writing, by electronic message or recorded conversation. Advertisers may contact business recipients once in order to solicit such consent; such initial contact will not be considered a violation of the Communications Amendment. Recipients may revoke their consent at any time, either in writing or in the same medium used to transmit the advertisement. It is permitted to distribute promotional messages without prior recipient consent under limited circumstances. In addition to the consent requirements described above, the Amendment requires that all electronic Promotional Messages include a clear, conspicuous notice containing the following information: (i) identification of the promotional message as an advertisement. For email communications, the word “advertisement” must appear in the email subject line; in all other promotional messages, such identification must appear in the beginning of the promotional message; (ii) the advertiser’s identity and contact information; and (iii) notification of the recipient’s right to opt out of receiving promotional messages and means for opting out (including an email address for email advertisements). In a recent case, an Israeli District Court authorized the initiation of class action against service providers who have violated the Communications Amendment. In the decision, the court ruled that the practice of automatically calling a phone number and immediately disconnecting in order to induce the customer to call back violated the Communications Amendment. The decision also held that the practice of offering a recipient the opportunity to participate in a quiz for which prizes are awarded, a practice frequently used to obtain contact information for use in disseminating promotional messages, violates the Communications Amendment. (Civ File 1586/09 Hayut v Teleran Instant Messages Ltd Tak-Mehozi 2011). 3.11 Security requirements 3.11.1 Definition of data security and responsible parties The Privacy Law contains specific provisions regarding the security of data in databases. “Data security” is defined in s.7 as “the protection of the integrity of data, or protection of the data against exposure, use or copying, all when done without due permission”. The phrase “integrity of data” is further defined in s.7 to mean that the information in the database is identical “to the source from which it was derived, without having been changed, delivered or destroyed without due permission”. Owners, holders and managers of databases are each held individually responsible for data security (s.17). In the following three situations s.17B(a) requires appointment of a suitably trained person to be in charge of data security (“the Security Officer”): 3.11.1.1 the holder of five or more databases requiring registration under s.8; 3.11.1.2 a public body, as defined in s.23 of the Privacy Law; and 3.11.1.3 a bank, insurance company or a company involved in ranking or evaluating credit. Page 18 While the Security Officer is to be responsible for data security, the database owner, holder and manager nevertheless each are held individually responsible under the Privacy Law for data security as well (s.17B(b)). The database manager must inform the Register as to the identity of the Security Officer (reg.2 of the Data Possession Regulations). 3.11.2 Requirements for data security Maintaining database security includes the following obligations: 3.11.2.1 ensuring physical protection of the automatic data processing system and infrastructure; 3.11.2.2 setting administrative procedures regarding permitted access to the data and instructions regarding their collection, verification, processing and distribution (such procedures are also applicable to anyone providing external services to the database owner); 3.11.2.3 granting access authorisation to the database and restricting the access of authorised users in accordance with the instructions of the Data Transfer Committee (this also applies to public bodies); 3.11.2.4 preparation of an updated list of authorised users according to the various degrees of authorisation; 3.11.2.5 ensuring the authorised users sign undertakings to maintain the confidentiality of the data and to uphold the instructions established in accordance with paras (2) and (3) above; 3.11.2.6 establishing operating procedures for the system, including data security and protection for the integrity of data; 3.11.2.7 implementing reasonable security measures, in accordance with the level of sensitivity of the data, that will prevent intentional or accidental access to the system by a user beyond the areas of data permitted to him; and 3.11.2.8 establishing controls to reveal damage to the integrity of data and repair defects. See reg.3 of the Data Possession Regulations. In addition, the Outsourcing Directive sets out further security measures to be imposed upon the data processor, as are to be outlined in the binding data security policy. Page 19 3.11.3 Additional requirements for “restricted data” In addition, the Data Possession Regulations set out further requirements for the management and security of any database that contains “restricted data”. The regulations define “restricted data” as: 3.11.3.1 data about a person’s health situation; 3.11.3.2 data subject to the provisions of s.13(e)(1), (3) and (4) of the Privacy Law (primarily databases related to security, defence and foreign affairs); and 3.11.3.3 any other data deemed “restricted” by an order of the Minister of Justice (no such order has been published as yet). Any database that contains “restricted data” is subject to additional security requirements by virtue of the Data Possession Regulations. These obligations include the following: (1) the database must be administered according to guidelines for security and supervision of physical storage of the data (including a chapter governing any external service provider performing services such as data entry, data processing etc); (2) any print-outs containing restricted information that are distributed by a public body must state on each page that the information contains data protected by law and that unauthorised distribution is a crime; (3) the database manager must maintain a list of the users of the restricted information, and a list of those permitted access to the data (including their identification numbers, access codes and the type of information to which they are permitted access); the access codes must be changed periodically and not less than once every six months or upon a change of employees; (4) restrictions on access to the back-up copies of restricted information; (5) documents and magnetic records of intermediate processing activities must be burned, shredded or otherwise destroyed; and (6) the database manager must keep a journal of atypical events and save it for three years. See regs 8 to 15 of the Data Possession Regulations. In addition, in 2010 the Registrar of Databases published Directive 1–2010 which imposes guidelines for identity verification methods to be used when enabling remote access by a data subject to the data subject’s personal data stored in a database. The directive requires that the verification process solicit from the data subject at least one item of data which should only be known to the data subject. The number of verification items required should rise in accordance with the sensitivity of the data, or alternately, other measures could be employed, such as identity verification by means of a SIM card, cellular phone or biometric characteristic. Failure to correctly asses the sensitivity of the data and adjust the requirements accordingly constitutes a breach of data security obligations under s.17. 3.11.4 Guidelines for implementing security requirements The Privacy Protection Council (see 7.5 below) and the Israel Chamber of System Analysts have issued a set of guidelines (“the Guidelines”) intended to assist database managers in implementing the Privacy Law. A revised version of the Guidelines was published in September 1999 (and thus does not address the most recent amendments to the Privacy Law). The Guidelines are in Hebrew and contain a summary of the Privacy Law and regulations promulgated thereunder. The Guidelines also explain steps to be taken to ensure data system security, including software and hardware requirements, physical security, and administrative procedures. Annexes to the Guidelines include the full texts of the Privacy Law and the regulations, as well Page 20 as various forms that may be used for compliance with the Privacy Law. The Guidelines have been posted on the Registrar of Databases website, and may be accessed using the following link: http://www.justice.gov.il/NR/rdonlyres/C0681561-6CD4-4A6E-AE85-E2ABACC2C171/0/parta.pdf [Accessed August 8, 2011]. 3.12 Other relevant obligations of the data controller Section 11 provides that any request to a person (including a legal entity) to provide data that will be held or used in a database must be accompanied by a notice stating: 3.12.1 whether the person has a legal obligation to deliver the data or whether delivery depends on consent; 3.12.2 the purpose for which the data is requested; and 3.12.3 to whom the data will be delivered and for what purpose. It should be noted that the intelligent use of these forms of notice may assist in managing business databases and transferring data from registered databases located in Israel to databases located outside Israel and the transfer of data from one legal entity to another, in accordance with s.2 of the Protection of Privacy Regulations (Transfer of Data to Databases outside State Borders) 2001 (“the Data Transfer Regulations”). (See 5 below.) 4 OBLIGATIONS OF PROCESSING BUREAUX Although the provisions of the proposed law defining and regulating “service bureaux” were not enacted, other provisions of the 1996 amendment, together with the existing provisions of the Privacy Law, effectively accomplish similar results. For example, the 1996 amendment included the following provisions governing anyone who possesses databases with different owners, and anyone who possesses five or more databases that are registrable pursuant to s.8 of the Privacy Law: 4.1 Anyone who possesses a database owned by different owners may not let anyone have access to the database unless that person is explicitly authorised in a written agreement between the holder of the database and the owners of that database (s.17A(a)). 4.2 Anyone who possesses five or more databases that are registrable under s.8 is obligated to appoint a person to be in charge of data security and to submit the following to the Registrar each year: (a) a list of the databases in his possession; (b) an affidavit that the persons who are authorised to have access to each database have been specified in agreements between him and the database owners; and (c) the name of the person appointed to be in charge of data security. See ss.17A(b) and 17B(a) of the Privacy Law. Page 21 5 OBLIGATIONS RELATING TO DISCLOSURE AND TRANSFER OF DATA 5.1 Terminology explained An infringement of privacy in breach of the Privacy Law can stem from using, passing on or publishing information or data. The Privacy Law does not expressly distinguish between electronic transfers and other means of disclosure. With respect to databases, the Privacy Law specifically prohibits “the use” of any data in a database that must be registered, other than use for the purpose for which the database was set up (s.8(b)). The term “use” is defined so as to include disclosure, transfer and delivery (s.3) and probably includes processing. Also, the Privacy Law specifically prohibits anyone from disclosing data that was obtained due to his position as an employee, manager or holder in respect of a database, other than for the purpose of performing the person’s work or implementing the Privacy Law or in accordance with a court order (s.16). 5.2 Disclosure of data within the same legal entity While there are a number of provisions that govern disclosures of data (for examples, see 2.1 and 5.1 above, and ss.1, 2 and 16 of the Privacy Law), these provisions do not specifically regulate disclosures of data within the same legal entity. However, disclosures within the same legal entity could constitute an infringement of privacy under the Privacy Law if, for example, the disclosure infringed an obligation of secrecy in violation of s.2(7) or (8), or the information concerns a person’s private affairs and was used other than for the purpose for which it was given, in violation of s.2(9). A disclosure within the same legal entity could also constitute a violation of an obligation of secrecy under s.16 of the Privacy Law. In addition, implementation of the regulations regarding data security and restricted data could, in certain circumstances, require that security measures be taken to prevent unauthorised access to data by persons within the same legal entity (see also 3.11 above). For details, refer to regs 3 and 8–15 of the Data Possession Regulations and pp.20–29 of the Guidelines. 5.3 Disclosure of data to another legal entity The provisions of the Privacy Law which govern disclosures of data do not specifically refer to disclosures of data to another legal entity. Thus, presumably, all of the provisions regarding disclosures of data are applicable in this context. See, for example, 2.1 and 5.1 above, and ss.1, 2, 8(b), 16 and 17A of the Privacy Law. Note that anyone possessing databases of different owners or at least five databases that require registration must have agreements with the database owners that specify who may be allowed access to the database (see 3.9 above, and s.17A of the Privacy Law). However, there are also a number of defences and exemptions which allow certain disclosures that would otherwise be prohibited (see 8.1.3 below, and ss.18 and 19 of the Privacy Law). 5.4 International electronic transfers of data Under the Data Transfer Regulation, which came into effect in January 2002, the transfer of data outside the State of Israel is strictly prohibited unless the database owner secures the written undertaking of the recipient of the transferred data that such recipient will take sufficient precautions to protect the privacy of the data subjects and will not transfer the data to anyone else. In addition, an international transfer may not be made unless one (or more) of the following criteria is met: 5.4.1 the data is transferred to a country the laws of which ensure that the transferred data are protected to a degree no less than that accorded by Israeli law and incorporate the following principles: Page 22 5.4.1.1 data must be gathered and processed legally and fairly; 5.4.1.2 data shall be held, used and transferred solely for the purpose for which it was received; 5.4.1.3 stored data shall be correct and current; 5.4.1.4 subjects of the data shall have the right to view and correct the data; and 5.4.1.5 proper security precautions should be implemented to protect the data; 5.4.2 notwithstanding, data may be transferred in the event that one of the following conditions applies: 5.4.2.1 the subject of the data has consented to the transfer; 5.4.2.2 the transfer is critical to the subject’s health and he or she is unable to give consent; 5.4.2.3 the data is transferred to a corporation in which the owner of the Israeli-based database has a controlling interest (i.e. over 50 per cent) and the corporation has undertaken to maintain the privacy of the data; 5.4.2.4 the transferee undertakes toward the owner of the Israeli-based database to uphold the laws regarding the holding and using of data applying to databases located in Israel; 5.4.2.5 the data has been lawfully publicised; 5.4.2.6 transfer of data is necessary for the benefit or the security of the public; 5.4.2.7 transfer of data is required under Israeli law; or 5.4.2.8 Page 23 the data is transferred to a database in a country: (i) which is a party to the Council of Europe Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data (the “Convention”); (ii) which receives data from other European Union Member countries under the same terms and conditions; and (iii) which, according to a declaration issued by the Israeli Registrar, has a privacy protection authority with which the Registrar has reached a co-operative understanding (as of the date indicated on the release line below, no such understandings have been reached). As discussed above, “consent” means informed consent, which may be express or implied. The single exception to the general prohibition on the transfer of data is when transferring data pursuant to the Interstate Legal Assistance Law 1998, which provides for data disclosure procedures between Israel and applicable countries regarding legal proceedings. Furthermore, an application to register a database must give details regarding the transfer of data outside the borders of the state (s.9(b)(4)). Also, a notice to a person to provide data must state to whom the information will be delivered and for what purpose (s.11). Following the October 6, 2015 declaration by the Court of Justice of the European Union (CJEU) that the EU-US Safe Harbour regime is invalid, ILITA announced that Israeli data exporters transferring personal data from Israel to the US can no longer rely on the US recipient's Safe Harbour self-certification as a legal basis for such transfer under 5.4.2.8(ii) above. Nevertheless, ILITA has indicated that it will not, for the time being, initiate enforcement actions in respect of data exports from Israel to the US relying on the Safe Harbour framework, pending the outcome of the EU-US discussions regarding an alternative framework for the transfer of data. ILITA has of date not provided further clarifications in response to the announcement of the Privacy Shield agreement. 5.5 Disclosure of data by processing bureaux As stated above, the Privacy Law does not contain a concept that is exactly equivalent to a processing bureau. However, if a particular entity carrying on a processing bureau falls within one of the categories of regulated entity, it will be subject to the relevant provisions of the Privacy Law. For instance, a processing bureau is likely to come within the definition of a “holder” and will therefore be subject, inter alia, to the requirements set out at 5.3 above. See as well the discussion regarding outsourcing at 3.3 above. 6 RIGHTS OF DATA SUBJECTS 6.1 Access to data held 6.1.1 General right to inspect data Section 13(a) provides that every individual may inspect any information about him that is kept in a database, whether in person, by a representative who has written authorisation, or by a guardian (e.g. in the case of minors). The owner of the database must enable inspection of the information in Hebrew, Arabic or English, as requested (s.13(b)). An owner of a database who employs a third party to maintain it (“the holder”) must refer the applicant to the holder and provide the holder’s address. Also, the database owner must give written instructions to the holder to allow the inspection. If the applicant applied first to the holder, then the holder must inform the applicant whether he holds information about the applicant and provide the database owner’s name and address (s.13A). A form that may be used for the request is provided by the regulations issued pursuant to the Privacy Law (reg.1 of the Protection of Privacy Regulations (Conditions for Inspection of Data and Procedures for Appeal against Refusal of Request to Inspect) 1981 (“the Data Inspection Regulations”)). Pursuant to reg.6 of the Page 24 Data Inspection Regulations, the applicant must pay the owner or holder of the database a fee of NIS 20 for the inspection. Inspection must be permitted within 30 days of the request, although the Registrar may extend the period by an additional 15 days (reg.2(a) of the Data Inspection Regulations). The Data Inspection Regulations allow the database owner to provide a print-out of the requested information as the equivalent of permitting inspection of the data (reg.2(b) of the Data Inspection Regulations). However, reg.3(4) of the Data Inspection Regulations provides that the person viewing the print-out cannot remove it from the premises of the database owner or holder without permission. These regulations do not expressly require the database owner to provide a print-out. It is interesting to consider how these regulations would fare if tested in court, in light of the decision by the Supreme Court that the Companies Registrar, who is obliged by the Companies Ordinance to allow public inspection of certain information which is only maintained on computers, did not fulfil his obligation merely by allowing inspection on a computer screen, but instead was obliged to provide a print-out of the information so that the recipient would have written proof of the information and the date that it was received. See BGZ 2303/90 Eli Filipovitz v Ministry of Justice, Registrar of Companies (1990) 46 (i) PD 410. In 2010, the Registrar of Databases published Directive 1-2010 which imposes guidelines for identity verification methods to be used when enabling remote access by a data subject to the data subject’s personal data stored in a database. See 3.11.3 above. A database owner or holder may refuse the request for inspection if: 6.1.1.1 one of the provisions of s.13(e) applies to the data (see 6.1.3 below); or 6.1.1.2 the database is held by a “service bureau” that processes and stores data for its customers, so long as the applicant is referred to the owner of the data on whose behalf the processing or storage services are performed. See reg.4 of the Data Inspection Regulations. If the owner or holder of the database refuses to permit inspection, the applicant must be notified within 21 days (which may be extended by the Registrar for 15 additional days) (reg.5 of the Data Inspection Regulations). In the event the request is denied, the individual requesting the data may file a suit against the database owner in accordance with the procedures set forth in the Data Inspection Regulations. 6.1.2 Exemptions from right to inspect The Privacy Law sets out two instances in which the database owner does not have to enable the applicant to inspect the data: 6.1.2.1 The owner of a database may refrain from delivering to the applicant data regarding the applicant’s physical or mental health if the database owner believes that the data may endanger the applicant’s life or cause severe harm to the applicant’s physical or mental health. In such cases, the database owner must deliver the data to a physician or psychologist on behalf of the applicant (s.13(c)). 6.1.2.2 The owner of a database is not obligated to deliver data in breach of its privileged status, as prescribed under any enactment, unless the applicant is the person for whose benefit the privilege is enacted (s.13(d)). Such privileges include the privilege not to deliver information that otherwise must be disclosed as evidence, including information held by attorneys, physicians, psychologists, social workers, or clergy (see Evidence Ordinance (new version) 1971 ss.48 to 51). Page 25 6.1.3 Databases not subject to right of inspection The right to inspect data is not applicable to certain databases and certain data as follows: 6.1.3.1 a database of a security authority (i.e. the police, the intelligence branch of the General Staff of the Israel Defence Forces and of the military police, the General Security Service, the Institute of Intelligence and Special Assignments and the Witness Protection Authority); 6.1.3.2 the prison service database; 6.1.3.3 a tax authority’s database; 6.1.3.4 data as to which the security of the state, its foreign relations or the provisions of any enactment require that the data not be disclosed; 6.1.3.5 databases of any body deemed (by the Minister of Justice, in consultation with the Minister of Foreign Affairs or Defence, with approval of the Parliament Foreign Relations and Security Committee) to contain information that should not be revealed due to national security or foreign relations (“secret information”). Databases deemed to contain secret information include the databases of the Ministry of Defence and certain of its affiliates, and the Israel Aircraft Industry and its subsidiaries and operating units. However, any person who requests to inspect data about himself stored in such a database is entitled to examine any information that is not “secret information” (s.13(e)(4)). See also the Protection of Privacy Regulations (Determination of Databases Containing Non-Disclosable Data) 1987; and 6.1.3.6 the database established by the Minister of Justice, in accordance with s.28 of the Prohibition of Money Laundering Law 2000, which contains a record of all reports of money laundering submitted to the Ministry of Justice. This database is governed by the Prohibition on Money Laundering Regulations (Guidelines for Management of the Database and the Protection of Data contained therein) 2002. 6.2 Information about data held There are no obligations to provide information to the data subject except in accordance with a request to inspect data (see 6.1 above), or a request to provide data (see 3.12 above). 6.3 Rectification of inaccurate data Section 14(a) of the Privacy Law provides that if any individual inspects information about himself and finds that it is inaccurate, incomplete, unclear or not up-to-date, the person may request that the database owner or (if that owner is a foreign resident) its holder amend or delete the information. If the database owner agrees to the request, he must make the necessary changes and communicate them to the applicant and to anyone who received the information from him within the preceding three years (s.14(b) of the Privacy Law, and reg.7(a) of the Data Inspection Regulations). If the database owner refuses the Page 26 request, then he must give the person notice of the refusal within 30 days of receipt of the request (which may be extended for an additional 15 days by the Registrar) (s.14(c) of the Privacy Law and reg.17(b) of the Data Inspection Regulations). The holder of the database must correct the data if the database owner agreed to the requested amendment, or if a court ordered the correction to be made (s.14(d) of the Privacy Law). 6.4 Erasure of data There are no provisions in the Privacy Law or regulations regarding erasure of data in databases generally. However, every person (including a legal entity) may demand in writing from the owner of a database used for direct mail that the information about him be deleted from the database (s.17F(b)). 6.5 Blocking of data There are no provisions regarding blocking of data in databases generally. However, every person (including a legal entity) may demand in writing from the owner of a database used for direct mail, or from the owner of a database containing data on the basis of which the direct mail approach was made, that data relating to him not be given to a specific person, to a category of persons, or to any person at all, either for a specific period of time or indefinitely (s.17F(c)). 6.6 Compensation for inaccurate data, etc. There are no provisions specifically setting out rights to compensation for damage suffered as a result of inaccurate data. However, breaches of the Privacy Law, whether by act or omission, constitute a civil wrong under the Civil Wrongs Ordinance (new version) (ss.4 and 31B of the Privacy Law). Therefore, compensation for inaccurate data could be awarded if damage were suffered as a result of inaccurate data, provided the damage also resulted from a breach of the Privacy Law. In addition, a civil suit can be brought for compensation for damage suffered as a result of an unauthorised disclosure of data, if the disclosure constitutes an infringement of privacy under s.2 (s.4 of the Privacy Law and 8 below). 6.7 Objection to processing The Privacy Law allows a data subject to object to processing of data by means of a civil suit based on the claim that the processing is an infringement of privacy or constitutes an act or omission in violation of Chs Two or Four of the Privacy Law (see 8 below). 6.8 Other relevant rights The Privacy Law contains no other relevant rights. 7 THE REGULATORY BODY 7.1 The regulatory body The Registrar of Databases is appointed by the government pursuant to the Privacy Law which, together with the Registrar of Credit Details Service and the Registrar of Approving Entities (appointed pursuant to the Electronic Signature Law 2001) form the Israeli Law, Information and Technology Authority (“ILITA”). 7.2 Duties and powers of the regulatory body Page 27 The Registrar is required to maintain the Registry of Databases, and is empowered to supervise compliance with provisions of the Privacy Law and the regulations issued thereunder (ss.7 and 10(c)). The Registrar is authorised to refuse to register a database if she has reasonable grounds to assume that: 7.2.1 the database is used or is liable to be used for illegal activities or as a cover for them; or 7.2.2 the data included in the database were obtained, accrued or collected in breach of the Privacy Law or in breach of the provisions of any enactment (s.10(a)(1)). This authority to refuse registration was expanded to include the second ground following a Supreme Court decision upholding the refusal of the Registrar to register a database containing information on dishonoured cheques that were to be gathered in breach of the privacy rights of those whose cheques were dishonoured. See Registrar of Databases v Moshe Ventura (1988) 48 (iii) PD 808. The Registrar is also the head of a unit set up by the Minister of Justice to supervise databases, their registration and the security of the data, and the Registrar is authorised to appoint inspectors (ss.10(d) and 10(e)). The inspectors are granted broad powers under the Privacy Law. The inspectors may demand that a person furnish information and documents related to a database. Also, to ensure implementation of the Privacy Law and to prevent breaches, inspectors may enter, search and seize objects from any place at which they have a reasonable belief that a database is being operated (except that entry into a residence requires a court order) (s.10(f)). Pursuant to s.10A of the Privacy Law, the Registrar of Databases is required to prepare an annual report about its enforcement and supervision activities during the preceding year for submission to the Constitution, Law and Justice Committee of the Parliament. The most recent report, the 2014 annual report, describes events that occurred during 2014. The 2014 annual report contains the following: (1) A discussion of the primary focuses of ILITA in 2014. These included continuing in its efforts with respect to various proposed amendments to the Privacy Law and providing counsel regarding the drafting of proposed amendments to the Genetic Information Law 2000. The proposed amendments of the Privacy Law relate to the grant of additional enforcement authority to the Registrar of Databases, eradication of the database registration requirement other than for designated classes of databases so that ILITA could focus its efforts on supervision, as well as an amendment providing the right to be forgotten in a data subject’s request to search engine operators. Additionally, ILITA has been updating the draft regulations on data security, which would require higher standards of data security by database owners and grant ILITA greater enforcement rights over breach by the database owners of their data security obligations. The new version of the draft regulations has not yet been published. The report also reports on ILITA's involvement in advising the Israeli government on privacy issues related to a number of initiatives including the creation of a registry of Israeli citizens' biometric information by the Population and Immigration Authority and the use of a unified medical information database for the various health care providers. In recognition of the inherently international nature of cyber-privacy issues, the report also highlighted ILITA's involvement in various international conferences and committees dedicated to the collective articulation and enforcement of privacy protection standards. As part of the Global Privacy Enforcement Network, ILITA participated with other DPAs in Application Sweep 2014. Various applications around the world were assessed for privacy compliance and a letter signed by the DPAs, including ILITA, was sent to various app stores requesting that applications owners be required to direct users to their privacy policies prior to download of the application. (2) A description of enforcement and supervision activities during 2014. These activities are divided into two basic types: (i) administrative enforcement and supervision; and (ii) criminal investigation and enforcement. The report indicates that in 2014 ILITA completed 34 administrative inspections regarding compliance with the Privacy Law. 62% of these inspections resulted in issuing directions for correcting Page 28 deficiencies. Two of the inspections resulted in declarations of breach and one inspection resulted in the imposition of an administrative fine. The administrative fine was imposed on an insurance provider for breach of the purpose limitation of the Privacy Law (s. 11) while engaging in direct marketing activities. The declarations of breach were made with respect to organizations which did not supply adequate security to their databases. ILITA was also involved in supervision of a Ministry of Education project for the use of educational applications for children. Among the criminal investigations the report mentions are ILITA's forensic analysis that revealed the identity of and method used by an employee of a credit services provider who deleted financial data from the company's digital database for the benefit of clients who wanted better credit ratings. ILITA submitted its findings to the State Attorney for the initiation of criminal proceedings. 7.3 Role of codes of practice The Privacy Law does not provide for any codes of practice. The Registrar of Databases has issued guidelines with respect to certain activities. These guidelines do not have the status of binding law; they do however reflect the manner in which the Registrar of Databases interprets existing law. 7.4 Role of courts and tribunals There is no special tribunal set up to handle matters relating to data protection. See 8 below with respect to the role of the courts. 7.5 Role of other organisations The Privacy Protection Council (“the Council”) was established by the Minister of Justice in order to advise the Minister of Justice on matters related to the Privacy Law, as well as to provide guidance to the Registrar of Databases. The Council may be contacted as follows: Address: Privacy Protection Council Ministry of Justice PO Box 7360 The Government Offices 125 Begin Street, Tel Aviv Israel 61092 privacy.council@justice.gov.il Name: Alon Bachar, Adv Title: Registrar of Databases Address: Ministry of Justice PO Box 7360 The Government Offices 125 Begin Street Tel Aviv Israel 61072 Tel: +972 3 7634 050 Fax: +972 2 6467 064 8 OFFENCES AND ENFORCEMENT 8.1 Summary of offences Page 29 8.1.1 Offences for infringement of privacy An infringement of privacy is actionable as a civil wrong pursuant to s.4. A person who wilfully infringes the privacy of another in one of the ways described in ss.2(7), 2(9), 2(10) or 2(11) could, inter alia, be subject to five years’ imprisonment pursuant to s.5. However, s.6 of the Privacy Law also provides that: “No right to bring a civil or criminal action under this Law shall accrue for an infringement that has no real significance”. Section 29A provides that the court may award damages amounting to NIS 50,000 without proof of damages pursuant to ss.4 and 5. The section further stipulates that the damages may be doubled in civil wrong pursuant to s.4 upon evidence that the privacy infringement was with intent to harm. 8.1.2 Offences specifically involving databases In addition to the civil or criminal proceedings for an infringement of privacy, the Privacy Law also contains specific offences regarding databases. Section 16 provides that a person may be subjected to five years’ imprisonment for disclosing data obtained by virtue of his or her position as an employee, manager or holder in respect of a database, except for the purpose of performing his or her duties or implementing the Privacy Law or under a court order in connection with legal proceedings. A person may be subjected to one year’s imprisonment for breach of the following obligations regarding databases (s.31A(a)): 8.1.2.1 managing, possessing or using a database in breach of s.8 (i.e. the obligations to register certain databases); 8.1.2.2 delivering false details in an application for registration of a database, as required by s.9; 8.1.2.3 failing to deliver details or delivering false details in a notice attached to a request for information under s.11; 8.1.2.4 failing to comply with the provisions of ss.13 and 13A regarding the right to inspect information kept in a database, or failing to amend a database in accordance with the requirements of s.14; 8.1.2.5 granting access to a database in breach of s.17A(a), or failing to deliver documents or an affidavit to the Registrar in accordance with the provisions of s.17A(b); 8.1.2.6 failing to appoint a security officer for data security as required by s.17B; 8.1.2.7 managing or possessing a database used for direct mail services in breach of the provisions of ss.17D to 17F; and 8.1.2.8 delivering information in breach of ss.23B to 23E (regarding public bodies). Page 30 These are strict liability offences, as neither criminal intent nor negligence need be proven (s.31A(b)). In addition to providing that an infringement of privacy is actionable as a civil wrong, s.31B of the Privacy Law also specifies that an act or omission in breach of the provisions of Ch. Two (protection of privacy in a database) or Chapter Four (delivery of information by public bodies), or in breach of any regulations issued pursuant to the Privacy Law, is a civil wrong under the Civil Wrongs Ordinance (new version). This provision was added in order to ensure that even omissions such as a failure to ensure data security would also be actionable as a civil wrong. See Explanatory Notes to Proposed Law, Reshumot, Hatza’at Hok 2234 (1994) at p.148. 8.1.3 Defences, exemptions and mitigating circumstances The Privacy Law sets out a number of defences, exemptions and mitigating circumstances. For example, in criminal or civil proceedings for infringement of privacy, it is a good defence if the infringement was committed in good faith: 8.1.3.1 by someone who neither knew, nor should have known, of the possibility of an infringement of privacy; 8.1.3.2 in circumstances in which the infringer was under a legal, moral, social or professional obligation to commit the infringement, unless the infringer breached the professional ethical code or custom and provided that the infringer was not under a legal obligation to commit the infringement; and 8.1.3.3 in defence of a legitimate personal interest of the infringer (s.18(2)). It is also a good defence if, in the circumstances, the infringement was justified by a public interest, provided that if the infringement involved a publication the publication was not untruthful (s.18(3)). An exemption under s.19(a) provides that no person shall be responsible under the Privacy Law for an act which he or she is empowered to do by law. This provision broadly encompasses any disclosure of data that is authorised under any statute, ordinance, or regulation. Another exemption (under s.19(b)) provides that no security authority, or person employed by it or acting on its behalf, shall be responsible under the Privacy Law for an infringement reasonably committed within the scope of their functions. Mitigating circumstances that a court may take into account in sentencing or awarding compensation include the fact that the accused or defendant did not intend to commit an infringement (s.22). 8.2 Remedies and sanctions available 8.2.1 Criminal and civil remedies and sanctions Criminal and/or civil proceedings may be brought based on an infringement of privacy under the Privacy Law (see 8.1 above). Criminal sanctions include fines or jail terms, and civil remedies include injunctive relief and/or monetary compensation. Details regarding fines are described in the Administrative Offense Regulations (Administrative Fine—Protection of Privacy) 2004. The Registrar of Databases has issued administrative fines, e.g. in 2011 the Registrar of Databases issued administrative fines to five private companies for unauthorized use of information, one of which was a Placement Institute fined for refusing to allow a person to view the opinion written pursuant to his pre-employment evaluation and screening. In 2014 the Registrar of Databases issued an administrative fine to an insurance company who used customer data to market additional insurance products by direct mail when customers had not consented to such use. . An infringement of privacy is actionable as a civil wrong pursuant to s.4. In addition, s.29A provides that the court may award damages amounting to NIS 50,000 without proof of damages pursuant to ss.4 and 5. The Page 31 section further stipulates that the damages for civil wrongs may be doubled pursuant to s.4 upon evidence that the privacy infringement was with intent to harm. 8.3 Administrative remedies Pursuant to s.10(f), the Registrar may apply to the District Court for an order cancelling the registration of a database or suspending the registration’s validity for a specific period if: 8.3.1 the owner or holder in respect of a database infringes any provision of the Privacy Law or its regulations; or 8.3.2 the owner or holder in respect of a database fails to comply with any demand made of him or her by the Registrar. Provided that prior to such suspension or cancellation, the owner of the database received an opportunity to make to claim against such decision. The Registrar of Databases has selectively exercised its authority and removed a number of databases from the Register of Databases, and refused registration of databases. 8.4 Rights of appeal Apart from the standard rights of appeal under Israeli law from any civil or criminal proceeding, there are two specific rights of appeal granted by the Privacy Law. Database owners may appeal to the District Court within 30 days after being served notice of certain decisions of the Registrar (such as an order by the Registrar to register a database that is otherwise exempt from registration, or a refusal by the Registrar to register a database) (ss.8(e) and 10(b)). An individual who requests to inspect data in a database and is refused, or who receives notice from a database owner that the request to amend or delete data was rejected, is entitled to appeal to the Magistrates’ Court (s.15). 9 INTERNATIONAL ASPECTS AND THE FUTURE 9.1 Council of Europe Convention See s.4 above (reg.2(h)(i)). 9.2 European Union Directive: applicability and implementation status In January 2011, pursuant to Directive 95/46 of the European Parliament, the European Commission formally adopted a decision that Israel’s domestic law guarantees an adequate level of protection for personal information for the purposes of art.25 of Directive 95/46. The decision extends to international automated data transfers, as well as non-automated transfers that are subject to further automated processing in Israel. The decision does not extend to international data transfers where the transfer itself, as well as the subsequent data processing, is carried out exclusively through non-automated means. 9.3 Brief summary of draft implementation legislation Page 32 9.3.1 Draft Protection of Privacy Law (Reduction of Registration Requirements and Establishment of Obligation to Maintain Management Procedures, Work Processes and Documentation) 2012 A proposed amendment to the Privacy Law represents a fundamental shift in the Israeli approach to database regulation. Following the recommendations of the Schoffmant Report (see 9.3.6 below), the proposed amendment would replace database registration requirements for most databases with accountability, internal documentation and notification requirements. Database owners and holders will be required to implement internal management procedures and methodologies designed to meet Privacy Law requirements and to maintain appropriate, up-to date documentation in respect of such efforts (including documentation with respect to database management, use and security and the exercise of data subject inspection and correction rights). In addition, database owners must maintain a document containing certain basic information regarding the database, and such document must be made available for public inspection upon request. Database owners must notify the General Director of Data Protection of the existence of the database and related information and that the documentation requirements have been complied with. These obligations would apply to databases which include the following categories of data: (i) data about a person’s personal, private affairs, including data about his or her behaviour in the private domain; (ii) medical data; (iii) genetic data as defined in Genetic Information Law 2000; (iv) economic data; (v) data regarding a person’s political opinions or religious beliefs; (vi) criminal background data; (vii) location data, subscription data or traffic data; (viii) unique human physiological characterization data, which may be measured by computers and is used to identify individuals. 9.3.2 Draft Protection of Privacy Regulations (Information Security in Databases (2012)) Draft Protection of Privacy Regulations (Information Security in Databases) 2012, with a new draft being at present prepared by ILITA, are pending before the Israeli Parliament and, if enacted, they will impose additional obligations in respect of data security. (1) The draft regulations define what would constitute medium or high security databases and apply varying obligations upon database owners with respect to the security categorisation of the database. (2) A database owner would be required to define in a binding document the types of data included in the database (including the level of their sensitivity), the approved purposes and uses for that data (determining the scope of the purpose limitation regarding that data), details regarding transfer of data abroad, details regarding the manner of data processing by the database holder, and the key risks that could compromise the integrity of the data. The owner would also be required to map out the components of the computer systems serving the database and, for high security databases, the owner would be required to conduct risk reviews. (3) The security administrator (whether the database manager or a specially appointed security officer) would be required to report directly to either the database owner, database manager or to a senior officer in order to confirm his professional independence. In the scope of his work, he would be required to draft a data security procedure, which would be binding upon all the employees having access to the databases. This procedure would include, for example, provisions for the report to the database owner of security Page 33 breaches of medium to high security databases, as well as the detailing of the different kinds of authorisation needed for accessing the data. (4) In the event of a serious breach of medium or high security databases, the database owner would be required to report the incident immediately to the Registrar and identify the steps taken following the event/breach. The Registrar would have the authority to instruct the database owner to notify affected data subjects of the breach. (5) Other subjects dealt with in the draft regulations include: employee instruction in security measures, authorisation for access as based upon the definition of the employee’s function within the organisation, identification verification during access to the database, automatic documentation of any database access in medium or high security databases, documentation of events of a possible breach of the database (preferably automatically), safeguarding of the copying of the data and of the portable devices in which data is stored, compartmentalisation of the computer systems, outsourcing, deletion of data no longer needed, periodic audits, and procedures for backup. (6) Database owners, managers and holders would be responsible for compliance with the Regulation and for maintaining detailed records documenting efforts taken to comply. 9.3.3 Draft Amendment to Privacy Law in respect of Investigation and Enforcement Authority A proposed amendment to the Privacy Law pending before the Parliament since November 2011 would vest the Registrar who would be renamed the General Director of Data Protection with additional powers and enforcement authority. Pursuant to the proposed amendment, the General Director of Data Protection would be granted additional investigatory, supervisory and enforcement powers, including the power to impose fines that are substantially higher than those currently authorised under the Privacy Law. These fines would be set in proportion to the seriousness of the violation, the level of sensitivity of the data, and the size of the database. The intention is to enable the General Director of Data Protection to exercise certain powers that are currently held only by the criminal enforcement authorities. Additionally, the amendment would impose a duty on senior officers in both private and public sector companies to ensure that their organisation fulfil the privacy law requirements, with criminal liability imposed upon those officers in case of their violation of such duties. 9.3.4 Draft Amendment to Privacy Law in respect of the Right to be Forgotten A proposed amendment to the Privacy Law pending before the Parliament since July 2014 would provide data subjects who feel that they have been harmed by the publication of their personal data on electronic media the right to request that the search engine operators remove their data. If such search engine operator refuses such request, the data subject would have recourse at court. 9.3.5 Schoffman Committee Report Historically, reports of the Registrar of Databases outlined problems and trends in connection with enforcement of the Privacy Law, and concluded that the Privacy Law has proven to be inadequate in dealing with the possibilities of infringement of individual privacy through the use of data networks and broadband data transfer from remote servers. This, together with the understanding that since the last comprehensive amendment of 1996, many technical developments have been introduced which are not addressed by the current provisions of the Privacy Law, it was made clear that a full reappraisal and assessment of data protection legislation in Israel is required, and in 2004 the Ministry of Justice appointed a Committee for the Review of the Legislation in the Field of Data Protection, which is often referred to as “Schoffman Committee”. The Schoffman Committee report was published in January 2007, and included recommendations for amendment of the Privacy law. The recommendations of the Schoffman Report, include, among others, the following: Page 34 (1) Broadening this definition of “databases” to include non-computerised databases. The Report suggested the following definition: “A collection of personal data where the information can be tracked by a certain characterization or profile.” (2) Replacing the existing definition of “data” with the following definition: “any details regarding an identified person or a person who can be identifiable by reasonable measures”. In addition, the report proposed the cancellation of the definition of “sensitive data” and proposed guidelines for types of data that would require registration in the Database Registrar. (3) Limiting the obligation to register a Database to the following circumstances: (a) the database owner “trades” in the information; or (b) the Database includes sensitive data. In addition, the committee recommends broadening the authority of the Registrar of Databases to require an exempt database to register, and provide the Minister of Justice with the authority to compel or exempt from registration certain types of databases. (4) Providing the Registrar of Databases with the following authorities: (a) independent discretionary power, including authority to take part in a legal proceeding of public concern; (b) setting guidelines with respect to Ch.Two of the Privacy Law; (c) the authority to issue protection of data orders. (5) Amending the Class Action Law to allow class actions for violations of the Privacy Law. (6) With respect to s.2(9) of the Privacy Law, which restricts the transfer and usage by a third party of information regarding individuals’ private affairs other than for the purpose for which it was given, the Report recommended broadening this restriction to a wide range of personal data. (7) Requiring database holders to introduce data security measures that will guarantee reasonable protection on the intactness of the data, its availability and confidentiality, and will prevent unauthorised use of the data, including inspecting, copying or changing the data. (8) Clarifying that the rights to inspect and amend the data (ss.13 and 14) apply only to active databases, and that the inspection rights will include that right to receive information about the type of personal data stored in the database, the sources of information of the database, whether the data is provided to third parties, and if so, the identity of such third parties and the purposes for which the data is transferred. (9) Amending the Privacy Law so that the sections regarding Direct Mail Services would apply only in those cases where the Communication Law (which contains comprehensive legislation regarding the transmission of electronic messages, such as emails, SMSs and the like) does not apply. (10) Reassessing the existing Data Transfer Regulations. In addition, it recommends that the transfer of data outside the State of Israel not in compliance with the Data Transfer Regulations constitute a criminal offence. Certain recommendations of the Schoffman Committee have been reflected in legislation pending before the Parliament. ANNEX LIST OF PRIMARY AND SECONDARY LEGISLATIONPrimary legislation Number Date in force Protection of Privacy Law 1981 Chapter Two of the Law Remainder of the Law 1011 September 12, 1981 March 11, 1981 Amendment to Protection of Privacy Law 1981 1016 April 7, 1981 Amendment to Protection of Privacy Law 1985 1137 March 7, 1985 Page 35 Amendment to Protection of Privacy Law 1995 1497 December 28, 1994 Amendment to Protection of Privacy Law 1995 (No.2) 1526 June 9, 1995 Amendment to Protection of Privacy Law 1996 Sections 17A and 17B Sections 17C–17I Section 10A Remainder of the Amendment 1589 October 12, 1996 April 12, 1997 April 1, 1997 April 11, 1997 Amendment to Protection of Privacy Law 1981 1625 December 3, 1996 Amendment to Protection of Privacy Law 1981 1735 July 2, 2000 Amendment to Protection of Privacy Law 1981 2020 August 8, 2005 Amendment to Protection of Privacy Law 1981 2038 December 8, 2005 Amendment to Protection of Privacy Law 1981 (No.9) 2101 June 26, 2007 Amendment to Protection of Privacy Law 1981 (No.10) 2192 November 16, 2008 Amendment to Protection of Privacy Law 1981 (No.11) 2291 April 5, 2011 Credit Reporting Law 2002 February 1, 2003 Secondary legislation Number Date in force Protection of Privacy Regulations (Determination of Databases Containing Non-Disclosable Data) 1986 5022 April 1, 1987 Protection of Privacy Regulations (Conditions for Possessing and Protecting Data and Procedures for Transferring Data Between Public Bodies) 1987 4931 February 12, 1987 Amendment 2005 6422 December 19, 2005 Protection of Privacy Regulations (Conditions for Inspection of Data and Procedures for Appeal from a Refusal of a Denial of a Request to Inspect) 1981 Amendment 1985 Amendment 2002 4270 Page 36 4794 6193 September 13, 1981 April 18, 1985 August 26, 2002 Protection of Privacy Regulations (Fees) 2000 Last amended: 2013 6069 7219 January 1, 2001 February 3, 2013 Administrative Offences Regulations (Administrative Fine—Protection of Privacy) 2004 6299 April 26, 2004 Protection of Privacy Regulations (Transfer of Information to Databases outside of the State’s Boundaries) 2001 6113 July 2, 2001 Protection of Privacy Order (Determination of Public Bodies) 1986 Last amended: 2012 4898 7090 February 2, 1986 February 16, 2013

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